What the SCOTUS Decision on the Texas Abortion Law Means
Sep 3, 2021 by David Fowler
Dr. P. Andrew Sandlin once told me, “Political victories are perfectly compatible with losing the culture,” and he is right. The decision by the Fifth Court of Appeals and U.S. Supreme Court not to grant an emergency stay that would have prevented a Texas abortion law from going into effect is clearly a political victory. The pro-life community should rejoice for the reasons I will give, but may I encourage those who also want to stem the larger tide that is washing away any semblance of Christian culture in America to have a larger, on-going vision.
A report on the law from Fox News explains the law and the situation this way:
What wasn't said is that the lawsuit on the constitutionality of the law is still pending.
Thus, as of today, while the law is in effect, Planned Parenthood will continue to argue in the pending litigation that the law is unconstitutional for a variety of asserted reasons, not the least of which is the law violates the abortion standard set forth in Planned Parenthood v. Casey, namely, the state’s creation of a cause of action for damages places an undue burden on abortion prior to fetal viability.
If the law remains in effect while the underlying lawsuit is still pending, Planned Parenthood will have to decide whether to continue performing abortions in Texas for the time being [1] and risk being sued for civil damages, say, by a grandparent upset that his or her grandchild was killed (assuming the grandparent knows of the abortion and the provider). Planned Parenthood may not want to expose itself to that risk and stop performing abortions until the litigation is resolved.
That, of course, means the law will have a salutary effect even if its constitutionality is never decided. The lives of the unborn in Texas will be spared unless the mother goes out of state for the abortion or gets a “black market” abortion with an undisclosed provider.
However, let me encourage cultural conservatives to think beyond the success of the moment and the possibility that Planned Parenthood may choose to stop providing abortions in Texas (or in other states that may enact the law).
Here is the larger question: Will Planned Parenthood choosing not to perform abortions in Texas (or other states that enact a similar law) have any effect on the constitutional jurisprudence of the U.S. Supreme Court that is fueling the sweeping cultural changes taking place in other areas? I don’t think that is very likely.
The God-denying anthropological worldview underlying Roe—i.e., what it means to be human and the consequent effect of that on the meaning of all other human relationships—which led directly to Obergefell v. Hodges and same-sex marriage, which, in turn, is fueling all aspects of the transgender movement, will still be part of our nation’s constitutional jurisprudence.
That worldview will remain in place and continue to produce its natural fruits in culture. For example, as I explained last week, this worldview will fundamentally transform what it means to be a parent and the historical meaning of and basis for parental rights.
Moreover, it may not even be the end of Planned Parenthood. I suspect it will just move more swiftly into the field of providing transgender services, which expansion is already underway, to replace lost abortion revenue. Evil always moves to the next evil available to it. Even Satan left Jesus alone after his initial temptations failed, but he left looking for a more “opportune time” (Luke 4:13).
I am all for incrementalism, when appropriate, but in terms of addressing extant constitutional jurisprudence that denies creational realities, the Texas law, if not decided favorably on the constitutional merits, is not really incremental in that regard.
Babies’ lives will be saved if the law causes Planned Parenthood to stop performing abortion, and there is great value in that, but in terms of the long-term issues we face, it may be a political victory consistent with losing the culture.
The reigning constitutional worldview repudiating God’s creational anthropological model must be uprooted and replaced if the cultural trajectory is going to change anytime in the foreseeable future. The natural, God-ordained pedagogical effects of law, particularly when we think it is constitutional law, cannot be ignored.
Let us not think the Texas law makes undoing the anthropology of Roe and Casey unnecessary.
[1] Because the lawsuit is still pending and because Planned Parenthood may still want to follow through in its effort to have the law declared constitutional, it may well choose to stay in existence corporately to carry out the lawsuit, even if it stops performing abortions. Having to stop performing abortions, with its attendant loss of revenue, maybe the kind of “injury” that would allow the lawsuit to proceed to the question of the law's constitutionality.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
A report on the law from Fox News explains the law and the situation this way:
A Texas law that would ban abortion after a fetal heartbeat is detected is set to go into effect on Wednesday after the Fifth Circuit Court of Appeals canceled a hearing that was supposed to take place Monday…
The law not only prohibits abortion if there is a fetal heartbeat – which can be detectable as early as six weeks into pregnancy, before many women even know they are pregnant – but it also allows anyone other than government employees to sue someone who performs, assists with, or pays for an abortion in violation of the law.
The law not only prohibits abortion if there is a fetal heartbeat – which can be detectable as early as six weeks into pregnancy, before many women even know they are pregnant – but it also allows anyone other than government employees to sue someone who performs, assists with, or pays for an abortion in violation of the law.
What wasn't said is that the lawsuit on the constitutionality of the law is still pending.
Thus, as of today, while the law is in effect, Planned Parenthood will continue to argue in the pending litigation that the law is unconstitutional for a variety of asserted reasons, not the least of which is the law violates the abortion standard set forth in Planned Parenthood v. Casey, namely, the state’s creation of a cause of action for damages places an undue burden on abortion prior to fetal viability.
The Practical Consequences of the Law Going into Effect
If the law remains in effect while the underlying lawsuit is still pending, Planned Parenthood will have to decide whether to continue performing abortions in Texas for the time being [1] and risk being sued for civil damages, say, by a grandparent upset that his or her grandchild was killed (assuming the grandparent knows of the abortion and the provider). Planned Parenthood may not want to expose itself to that risk and stop performing abortions until the litigation is resolved.
That, of course, means the law will have a salutary effect even if its constitutionality is never decided. The lives of the unborn in Texas will be spared unless the mother goes out of state for the abortion or gets a “black market” abortion with an undisclosed provider.
However, let me encourage cultural conservatives to think beyond the success of the moment and the possibility that Planned Parenthood may choose to stop providing abortions in Texas (or in other states that may enact the law).
Thinking Bigger, Beyond Stopping Abortions
Here is the larger question: Will Planned Parenthood choosing not to perform abortions in Texas (or other states that enact a similar law) have any effect on the constitutional jurisprudence of the U.S. Supreme Court that is fueling the sweeping cultural changes taking place in other areas? I don’t think that is very likely.
The God-denying anthropological worldview underlying Roe—i.e., what it means to be human and the consequent effect of that on the meaning of all other human relationships—which led directly to Obergefell v. Hodges and same-sex marriage, which, in turn, is fueling all aspects of the transgender movement, will still be part of our nation’s constitutional jurisprudence.
That worldview will remain in place and continue to produce its natural fruits in culture. For example, as I explained last week, this worldview will fundamentally transform what it means to be a parent and the historical meaning of and basis for parental rights.
Moreover, it may not even be the end of Planned Parenthood. I suspect it will just move more swiftly into the field of providing transgender services, which expansion is already underway, to replace lost abortion revenue. Evil always moves to the next evil available to it. Even Satan left Jesus alone after his initial temptations failed, but he left looking for a more “opportune time” (Luke 4:13).
I am all for incrementalism, when appropriate, but in terms of addressing extant constitutional jurisprudence that denies creational realities, the Texas law, if not decided favorably on the constitutional merits, is not really incremental in that regard.
Conclusion
Babies’ lives will be saved if the law causes Planned Parenthood to stop performing abortion, and there is great value in that, but in terms of the long-term issues we face, it may be a political victory consistent with losing the culture.
The reigning constitutional worldview repudiating God’s creational anthropological model must be uprooted and replaced if the cultural trajectory is going to change anytime in the foreseeable future. The natural, God-ordained pedagogical effects of law, particularly when we think it is constitutional law, cannot be ignored.
Let us not think the Texas law makes undoing the anthropology of Roe and Casey unnecessary.
[1] Because the lawsuit is still pending and because Planned Parenthood may still want to follow through in its effort to have the law declared constitutional, it may well choose to stay in existence corporately to carry out the lawsuit, even if it stops performing abortions. Having to stop performing abortions, with its attendant loss of revenue, maybe the kind of “injury” that would allow the lawsuit to proceed to the question of the law's constitutionality.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
